Menston Action Group, R (on the application of) v Bradford Metropolitan District Council & Anor

A planning condition must be construed within the planning permission, its conditions and stated reasons, giving the language a common-sense meaning consistent with the law and relevant planning purpose. A condition cannot lawfully require a developer to remedy a pre-existing flooding problem that is unrelated to the permitted development. Sustainable drainage requirements therefore ordinarily require that development not worsen existing flooding, rather than improve pre-existing conditions, unless the permission clearly provides otherwise. At the permission stage, an arguable error of fact may justify permission where the decision-maker may have misunderstood the works shown on the approved drawings. A claimant’s standing may be sufficient at that stage where the claimant is a local community group with members directly affected by the development.

Menston Action Group sought judicial review of Bradford Metropolitan District Council’s decision that a drainage scheme for a proposed housing development satisfied condition 15 of the planning permission. The condition required approval of a surface-water drainage scheme based on sustainable drainage principles.

The claimant argued that the Council had wrongly treated the condition as requiring only that flooding should not be made worse, and had misunderstood the extent of excavation to the existing watercourse. The court also considered standing, the applicable permission threshold and whether the claim was an Aarhus Convention claim.

1. Ground 1 refused. The condition had to be construed within the permission, the conditions and their reasons. The approach in Telford and Wrekin Council v SSCLG [2013] EWHC 79 required a common-sense construction, informed by the underlying planning purpose and consistent with legality.
2. A condition imposed under section 72 of the Town and Country Planning Act 1990 must fairly and reasonably relate to the permitted development. Under Newbury District Council v SOSE [1981] AC 578, a condition cannot be used to remedy a pre-existing deficiency unrelated to the development. The same principle was supported by Delta Design and Engineering Ltd v SSETR [2000] 80 P & CR 76 and Elmbridge BC v SOSE [1989] JPL 277.
3. Condition 15 therefore required the drainage scheme not to worsen the existing flooding situation. It did not require the developer to improve a pre-existing flooding problem. The Flood and Water Management Act 2010, its uncommenced provisions and the draft DEFRA standards did not assist the claimant’s construction. The flood-risk assessment and related documents supported the no-worsening interpretation.
4. Ground 2 was arguable. The correspondence indicated that the Council may have proceeded on the basis that the watercourse would not be excavated, although another drawing appeared to show a two-metre excavation. Whether that misunderstanding was material, and whether the decision could be justified by later reasoning, required determination at a substantive hearing.
5. The claimant had sufficient standing at the permission stage. Permission was not refused on that ground. The court declined to impose the higher threshold considered in Mass Energy Limited v Birmingham City Council [1994] Env. LR 298, because its special circumstances were absent.

Permission was refused on Ground 1 and granted on Ground 2. The consent that the claim was an Aarhus Convention claim was approved.